Citation Nr: 18149707 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 07-31 515 DATE: November 13, 2018 ORDER Entitlement to a rating in excess of 10 percent for temporomandibular joint (TMJ) dysfunction is denied. FINDING OF FACT During this appeal, the Veteran’s TMJ dysfunction has been manifested pain, tenderness, popping, clicking, and limited range of motion. Range of motion tests have shown that the Veteran has been able to open her mouth to greater than 30 millimeters and lateral excursion to greater than 4 millimeters to both sides. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for TMJ dysfunction are neither met nor approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.150, Diagnostic Code 9905 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from August 1998 to August 2002. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran requested a personal hearing before a member of the Board in an August 2007 statement. The Veteran was scheduled for her requested hearing on April 7, 2010. However, the Veteran did not appear at a hearing before the Board. As such, the request for a Board hearing is deemed withdrawn. 38C.F.R. §20.704(d) (2018). In April 2011, the Board remanded the case and denied it on the merits in a January 2015 decision. The Veteran appealed the January 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2015 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the joint motion. The Board remanded the issue currently on appeal in April 2016 and February 2018 for additional development. The claim has now been returned to the Board for further appellate action. TMJ dysfunction The Veteran asserts that she should have a higher rating for her TMJ dysfunction throughout her appeal because her level of impairment is worse than contemplated by the currently assigned rating. During a May 2006 VA examination, the Veteran reported difficulty chewing hard or chewy foods, and that she grinded her teeth at night. A physical examination revealed that the Veteran was missing teeth numbers 1, 16, 17, and 32. The Veteran’s inter-incisal opening was 50 mm, her lateral left excursion was 13 mm and her lateral right excursion was 13 mm. The examiner also noted that there was popping of the right TMJ felt when opening. X-rays were unremarkable. Clinical examination showed posterior right crossbite, generalized wear facets, and that the Veteran’s jaw deviated to the right on closing. The Veteran was afforded another VA examination in June 2012. At that time, the Veteran reported pain, clicking, and popping. She also stated that there had been no changes in the TMJ condition since her last examination in 2006, nor had she experienced any flare-ups of the TMJ. A physical examination revealed that the Veteran’s inter-incisal opening was greater than 40 mm, and lateral excursion was greater than 4mm, with no objective evidence of painful motion. Upon repetitive-use testing with three repetitions, the Veteran had no additional loss of range of motion nor did she have any functional loss. The examiner noted that there was no localized tenderness or pain on palpation of the joints or soft tissues of either the left or right TMJ. The Veteran had clicking or crepitation on the right TMJ upon maximum opening. The examiner found that the Veteran had no other pertinent physical findings, complications, conditions, signs or symptoms related to her TMJ. The examiner also indicated that the Veteran had a posterior right crossbite. Further, the examiner indicated that the Veteran TMJ dysfunction had no impact on her ability to work. The Veteran was afforded another VA examination on June 2018. At that time, the Veteran reported daily and sometimes weekly lockjaw, that her jaw clicked and popped on occasion, and that she was limited in opening her mouth. She reported that she did not have flare-ups of TMJ, but that she did have functional loss or functional impairment of the TMJ dysfunction. A physical examination revealed that the Veteran’s inter-incisal opening was greater than 34mm, and lateral excursion was 0-4mm. Pain was noted on examination, but did not result in functional loss. There was evidence of pain with chewing, mouth opening, and tenderness on right lateral excursion, but none on left lateral excursion. There was evidence of crepitus or clicking of joints or soft tissue of the bilateral TMJ. The Veteran could perform repetitive use testing at least three repetitions without functional loss. The examiner found that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to her TMJ dysfunction. Further, imaging studies of the TMJ showed that the Veteran did not have degenerative arthritis, nor does she have any other significant diagnostic test findings. Further, the examiner noted that the Veteran’s TMJ dysfunction did not impact her ability to work. Additionally, the examiner noted that there was evidence of pain on passive range of motion, and when the joint is used in non-weight bearing. A review of the record shows that the Veteran received VA and private treatment for various disabilities. The record shows that a February 2006 notice from a private doctor noted that the Veteran’s TMJ dysfunction was characterized by pain while chewing, and headaches that occur most mornings. However, the Board finds that the evidence of record in the VA treatment notes or private treatment notes do not indicate that the Veteran’s TMJ dysfunction was more severe than that noted in the various VA examination reports of record. Thus, the evidence shows that the Veteran’s TMJ dysfunction has been manifested by pain, tenderness, popping, clicking, and limited range of motion. Indeed, during the Veteran’s VA examinations, she did not state, and the examiners did not find, that she had headaches related to her TMJ dysfunction. Range of motion tests have shown that the Veteran has been able to open her mouth to greater than 30 millimeters and lateral excursion from 0-4mm on both sides. Indeed, the medical evidence does not more nearly approximate inter-incisal range of motion limited to 21 to 30 mm. Inter-incisal range of motion is consistently better than 30 mm. The Board has considered 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995), along with the Veteran’s subjective complaints of pain and limitation due to pain. However, the medical evidence does not show additional disability beyond that contemplated by the currently assigned 10 percent disability evaluation. The Board notes that pain alone does not constitute functional loss under VA regulations. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board finds that the Veteran’s own report of symptomatology to be competent and credible. However, the medical evidence does not reflect the functional equivalent of symptoms required for a higher evaluation. In order to warrant a higher evaluation under Diagnostic Code 9905, there must be the functional equivalent of inter-incisal range of motion more nearly limited to 21-30 mm. It is noted that ratings for limited inter-incisal movement may not be combined with limited lateral excursion. The schedular criteria are not met and pain has not functionally restricted the range of motion to 30 mm or worse. In the absence of evidence showing that the Veteran’s TMJ dysfunction has a greater loss in range of motion for her inter-incisal or lateral excursion, a disability rating higher than 10 percent is not warranted under DC 9905. Although the Board observes that other criteria for rating dental and oral conditions are available in the regulations, those other criteria are not applicable because they contemplate disorders and symptoms that are not shown by the evidence in this case. Specifically, the evidence does not show that the Veteran has a loss of maxilla, ramus, or loss of hard palate. Moreover, as discussed above, the evidence does not show that the Veteran has additional symptomatology that is a manifestation of her service-connected TMJ dysfunction. Thus, there are no other manifestations of the TMJ dysfunction that warrant separate, compensable evaluations under other diagnostic codes. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that she meets the criteria for the next higher disability rating, her complaints along with the medical findings do not meet the schedular requirements for a higher evaluation than assigned, as explained and discussed above. Accordingly, the claim is denied and there is no basis to stage the rating. See Hart, supra. The evidence of record is not in equipoise and, therefore, there is no doubt to resolve. 38 U.S.C. § 5107; Gilbert, supra. The record reflects that the Veteran has indicated that she may be entitled to extraschedular consideration. Thus, the Board has considered the provisions of 38 C.F.R. § 3.321 (b)(1), but finds that no evidence that the Veteran’s service-connected disability has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards utilized to evaluate the severity of this disability. In this case, the symptomatology included in schedule of ratings for dental and oral conditions contemplates the Veteran’s symptomatology related to her service connected TMJ dysfunction. Specifically, the Veteran has stated that pain associated with her TMJ dysfunction interferes with intimacy in her marriage; that she must be conscientious about how much she opens her mouth when she laughs; and that she cannot eat certain meats. The Court has held that, if the schedular rating criteria reasonably describe the claimant’s disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for TMJ dysfunction symptoms, and that the manifestations of the disability are not more than those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the 10 percent rating granted in this decision. In the absence of such factors, the Board finds that the requirements for an extraschedular evaluation for the Veteran’s service-connected disability under the provisions of 38 C.F.R. § 3.321 (b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel